Carnival of mirrors: Laurence Tribe's "Unbearable Wrongness".

• Author: Lund, Nelson
• Position: Response to article in this issue, p. 571

Professor Tribe has now done to me just what I claim he did to the Supreme Court in eroG v. hsuB. (1) By repeatedly distorting what I actually said, Unbearable Wrongness (2) creates illusory targets that Professor Tribe then holds up to ridicule. (3) In the very limited space that the editors have allotted, I could not possibly offer point-by-point responses to his many mischaracterizations of what I said in the two articles that he attacks. (4) Nor will I try to catalog the arguments that he left unanswered in his lengthy rebuttal. (5)

Instead, I will focus on our most significant points of disagreement: whether the Court's rationale for the decision in Bush v. Gore suffers from an "almost embarrassing bankruptcy," (6) and whether the Court was legally prohibited from deciding the case at all. These are the important issues, and it is important to keep in mind that Professor Tribe's attacks on me are significant only because he desperately needs to show that any legal defense of the Court is silly. That is the only way to sustain his own claim that the Court was playing a shell game in Bush v. Gore, (7) or as he now says, that the Court's decision deserves to be greeted with "head-scratching incredulity." (8) Professor Tribe's claim is not just that Bush v. Gore was wrongly decided, but rather that no reasonable person could defend the decision. That is an extraordinarily serious accusation against the Court, and I say that the accusation is itself outrageous.

1. EQUAL PROTECTION

   First, Professor Tribe ignores the distinction that I and all the Justices have drawn between what we may think is the "original meaning" of various constitutional provisions and what the Court's cases say they mean. (9) Most importantly, neither I nor the Bush v. Gore majority argued that Reynolds v. Sims was rightly decided. (10) Notwithstanding Professor Tribe's repeated efforts to saddle me with the deep perplexities that are attributable to the Reynolds line of cases, I have neither the power to change the opinion that Chief Justice Warren wrote, nor the power to overrule any decision. Unlike me, the Bush v. Gore Court did have the power to overrule the well-settled Reynolds line of cases. But neither Professor Tribe nor anyone else that I'm aware of has criticized Bush v. Gore for accepting this line of precedent.

   The real issue is whether the Court applied those precedents correctly. I have argued that the decision in Bush v. Gore flows easily from the Reynolds line, and I believe I'm right about that. But I do not claim that anyone who advances a different interpretation of the Court's equal protection precedents must be greeted with the kind of mockery that Professor Tribe directs at the Supreme Court and me. (11) At least since the day the Court concluded that "the equal protection of the laws" means "the protection of equal laws," (12) the jurisprudence of this constitutional provision has been a never-ending exercise in drawing judicially-created lines between permissible and impermissible forms of inequality. All, or almost all, of the Court's equal protection decisions can therefore be defended with some sort of reasoned argument, as well as criticized with some sort of reasoned argument. In this respect, Bush v. Gore is just like the others.

   But Professor Tribe has not contented himself with making a reasoned argument against the Court's application of its equal protection precedents. Instead, he has taken upon himself the far more difficult burden of demonstrating that Bush v. Gore was "not just incorrect but utterly bizarre." (13) Unless he can meet that burden, his indictment of the Court is highly irresponsible. And he does not meet the burden. Professor Tribe's first major criticism of my defense of Bush v. Gore essentially boils down to this: the broad principle of equal protection that I quoted from Reynolds v. Sims (14) cannot imply that Bush v. Gore was right to "mandate[] precisely drawn and completely uniform standards for recounting electoral ballots" (15) because such a constitutional requirement would lead to a host of inconsistencies and even absurdities. (16) It is true that the Court and I both interpret Reynolds to stand for a principle broader than the requirement of equipopulous legislative districts. So does Professor Tribe, at least some of the time. (17) But neither the Court nor I interpreted Reynolds to entail the many absurdities that would no doubt follow if it required perfect equality or complete uniformity.

   Professor Tribe's argument would have considerable merit if he had correctly described the holding in Bush v. Gore. But he has not. Bush v. Gore pointed to several different instances of serious, unjustified, and avoidable nonuniformity in the recount ordered by the Florida court, and concluded that the recount order did not satisfy "the minimum requirement for nonarbitrary. treatment of voters necessary to secure the fundamental right." (18) The Court certainly did say that the formulation of uniform rules was practicable and necessary (19) but it never said that these rules must be "precisely drawn" or "completely" uniform. Whether one agrees with the Court's equal protection analysis or not, nobody should put these words into the Court's mouth, as Professor Tribe does, and then mock the Court for having said something utterly bizarre and foolish.

   Recognizing that "the problem of equal protection in election processes generally presents many complexities," (20) Bush v. Gore refrained from trying to elaborate a comprehensive set of rules for determining exactly how much and what kinds of nonuniformity are constitutionally proscribed in each of the various factual contexts that can arise in counting ballots. I think the Court's decision to rule narrowly made good sense, for reasons that I have already explained in detail. (21) Someone else might argue, without embarrassing himself, that the Court should have provided more detailed guidance for future cases. But that is not the argument that Professor Tribe advances.

   Instead, he insists that the Court was obliged to consider, sua sponte, hypothetical equal protection objections to the underlying count in Florida, and then rule on the basis of "facts" that had never even been argued to the Court, let alone tested in a trial. His principal argument, as I understand it, is that the underlying count was infected with uniformity problems at least as serious as those that the Supreme...